대전고등법원 2013.11.20 2013노329



The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

43,000,000 won shall be collected from the defendant.


1. Summary of grounds for appeal;

A. Article 3 of the facts charged by the Defendant of mistake of facts

There is no fact that H received KRW 3 million from H, such as paragraph (1).

B. The lower court’s sentencing (one year and two months of imprisonment, additional collection 46 million won) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. On February 2009, the summary of the facts charged stated that the Defendant, at the time of the representative H of M Co., Ltd. (hereinafter “M”), had delayed the refund of the value-added tax of the said company at the time, and that there was no money necessary for the process of the party construction, he would like to receive the refund of value-added tax as soon as possible, and that “if there is a person who is aware of the tax official book, it can help him, and the money is needed to change the amount.”

On February 27, 2009, the Defendant came to know of the fact that the value-added tax was paid by the Boan Tax Office, and requested H to pay the promised money. On the same day, H to receive KRW 3 million from the account transfer method (Agricultural N &O) and received KRW 3 million in the name of arranging affairs handled by public officials.

B. The circumstances consistent with the facts charged in the judgment 1 and the Defendant’s change in this regard requested the Defendant to refund value-added tax early at an investigative agency on February 27, 2009. On the same day, the value-added tax was refunded as requested by the investigation agency on February 27, 2009, and on the same day, the Defendant consistently stated that the Defendant remitted KRW 3 million to N’s agricultural account in the name

In addition, it is confirmed that, on February 27, 2009, KRW 153,998,560 was deposited from the Boan tax secretary on the records of M’s account transaction conducted by H, and on the same day, KRW 3 million was remitted to the N account in the name of N on the same day. The Defendant also led to the confession of this part of the facts charged in the original judgment.

However, the defendant does not use the N's account in the investigative agency and does not know the N, and he does not trade with M while engaging in landscaping business.